Is Assisting With Assisting With Assisting With Potential Copyright Infringement Illegal?

from the perhaps-in-Sweden dept

With a Swedish court trying to shut down The Pirate Bay by forcing what it thought was the site's main ISP to block it, many folks are talking about how quickly the site came back, and the site's rather defiant response to the attempt. There's also some buzz about the fact that an antivirus company, Avast, has started blocking The Pirate Bay as being "malicious." While Avast defends the decision, it certainly makes me question Avast's competence as a security company (Update: Avast now says it was a false positive and has been fixed -- but that wasn't what the company said originally). It should be looking at actual malicious behavior -- not just blocking a site that you could go to where you might possibly if you did something dumb get some malicious files on your computer. Why not just do what a security product is supposed to do and stop the actual maliciousness from occurring, rather than blocking the entire site?

But, more to the point, this highlights one of the slippery slope problems with The Pirate Bay ruling and others. When you start to blame the tools for the problem, where do you stop? Peter Sunde made this point with a short Twitter message about the order against the ISP (I think that's what it's about):

It's now decided that Assisting with assisting with assisting of eventual copyright infringement is a crime.

Indeed. This is the problem when you allow for some sort of "inducement" or "contributory copyright infringement" standard. Where do you stop? The Pirate Bay itself doesn't infringe on copyrights. It's the users who do. But, the courts blamed The Pirate Bay. And when that didn't work, it went after the site's ISP, who is so tangentially related to the actual infringement that it's ridiculous to put the burden on it. Who's next? Already we have the entertainment industry trying to get individual ISPs to block their customers from The Pirate Bay. Basically, it seems like anyone in the chain, no matter how loosely connected can now get pulled into this as potentially violating copyright law.

Update: A separate point raised in the comments: apparently the court only told the ISP to block access to a small list of specific content, but without being able to do that, it just blocked the whole site.

"...Assisting with assisting with assisting of eventual copyright infringement is a crime"

With this, ANY software, hardware, ISP, Telecom provider, school, publisher, politician, lawyer ...... the list goes on. Would be a criminal. Even the illegal farm worker by providing food to the evil programmer who works for Google on Chrome.

The ISP is partly to blame for the poor decision

It's important to note that the court only ordered the ISP to block the works mentioned on the lists that the movie and record companies provided (100-200 copyrighted works). It's of course not possible for an ISP to block only certain works so they have to block traffic to the whole site, but it's quite possible that the court didn't realize this and the ISP, very surprisingly I must say, failed to inform them of this fact. At least there is no mention of this in the court protocol.

If the court would have known it would probably have needed to weigh different interests against each other much more carefully, and I think that it's likely that the outcome in that case would have been different. So to a large degree this decision is due to the - I don't hesitate to say - lame defense of the ISP.

By the way, the court phrased the decision in terms of assisting the infringements done by the users of the Pirate Bay, which I guess is a way to try to get around this long chain of A assists B who assists C and so on.

Re: The ISP is partly to blame for the poor decision

It's important to note that the court only ordered the ISP to block the works mentioned on the lists that the movie and record companies provided (100-200 copyrighted works).

Source? Based on the links provided by TD, it seems clear that the court told the ISP to explicitly stop servicing TPB.

"An executive with Black Internet told Swedish newspaper SvD that the court informed the company that it would either shut off The Pirate Bay or face penalties. The founders of The Pirate Bay were found guilty of copyright violations last April."

Re: Re: The ISP is partly to blame for the poor decision

Well, maybe we're both right ;)

My source is the court protocol itself where it clearly says what I said. Since it's not possible for an ISP to block certain works the implication is of course that the ISP is forced to shut down all access. So if you're talking about the implication then TechDirt and CNet are correct, if you're talking about the court's words and what it actually ordered then I am correct.

Reading through the decision I actually just found an interesting thing: apparently both the record companies and the movie companies demanded that the ISP is ordered not to "assist making available" the copyrighted works in their catalogs or those relevant to the case. However, the court's order forbids the ISP to "make available" the works. Notice the absence of the word "assist" in the latter case.

The mere notion that an ISP makes copyrighted works available by providing network access seems really strange. Even more so when these words come from a Swedish low court.

Re: Re: Re: The ISP is partly to blame for the poor decision

My source is the court protocol itself where it clearly says what I said. Since it's not possible for an ISP to block certain works the implication is of course that the ISP is forced to shut down all access. So if you're talking about the implication then TechDirt and CNet are correct, if you're talking about the court's words and what it actually ordered then I am correct.

Assuming that the court protocol says what you say it says, then I would say that TechDirt and CNet are wrong. Or, in the very least, mischaracterizing the court ruling. Yes, ordering something that has the effect of shutting off service and hiding behind the "but we didn't tell you to shut off service" excuse is an underhanded tactic, but there's still an distinction between the two verdicts. One means the court is dangerously oppresive. The other means it's dangerously ignorant.

Re: Re: The ISP is partly to blame for the poor decision

I never said that the decision is fully due to a lame defense by the ISP. From a practical point of view, if the ISP had only informed the court that blocking only certain works is not possible then the court would have been forced to take the blocking of the whole site into consideration which very likely could have changed the outcome.

In terms of responsability however I don't think the court goes without blame. Actually I fully agree to what Hulser said above: "One [verdict] means the court is dangerously oppressive. The other means it's dangerously ignorant."

In any case this sure has stirred a lot of healthy debate. I think many are still in shock that this can happen in our country. Not the least after all the public debate about net neutrality and the principle of "mere conduit" etc.

assisting

You are now an accomplice to copyright, because you assisted in making it happen by hosting a site which allowed for links to the pirate bay, which can be used to download torrent files, which can be used to perform copyright infringement.

Upgrading the 'terror alert' against freedom

This is a constant battle one must face when they jump into this arena. As a Company with a tracker we face it on a weekly basis mostly from spam fed communications launched from a person posing as an attorney. The host is forced to make a determination of it's authenticity and sends a message to their client. Most ISP's don't want a battle so shutting a site down is the easiest way to minimize the damage, but is it right? As they have said, Pirate Bay hosts no content. A better example possibly would be Gary Fung at IsoHunt who has gone on the offensive against the 'powers that be' initiating a lawsuit to push the issue into court as a Plaintiff rather than a Defendant.

Much in the way the US approached the (unending wasteful War on Drugs)countries such as Britain are going on the offensive http://cultureghost.org/viewtopic.php?f=8&t=4112 joining other EU countries against the individual sharer. Suits against IsoHunt, TBP and others attack the trackers and in a further slap at TPB their host is served a summarily shuts them down. The upcoming months will shape how individuals will be able to share files and my hope is that forums such as this will serve as a soapbox and educate individuals on how to protect themselves. Hopefully furthering that a service such as a VPN will enhance their ability to avoid packet shaping ISP's snooping powers that be and enhance their own individual freedom through anonymity while on the net. Remember stay away from leaky PPTP which is more of a 'Political Statement' http://bit.ly/GXaHM and push for one using an OpenVPN client.

People on TorrentFreak were saying that it's actually the ISP that provides bandwith to TPB's ISP that blocked them. So it's the ISP of the ISP of a web site that provides links that users may use to infringe that got the ruling. Weird.

Court only allowed to consider the material presented by the parties

I have discussed the verdict with a Swedish blogger who has a law degree. He told me that the court in civil cases of this type is not even allowed to actively collect more material (eg. by seeking up experts and asking for clarifications) than that provided by the parties involved. It's up to the two parties to present the material that they find is relevant and then the court makes a decision based on that.

This means that even if the court had doubts regarding whether it is possible for an ISP to block specific works it's not up to the court to investigate this further but rather for the affected parties to bring this up, which the ISP clearly failed to do in this case.

Of course one can still argue that the court must have been quite ignorant since this almost seems like common knowledge, but in any case it's seems the fault of this strange decision is mostly to be blamed on the ISP.

Despite their attempt to take the moral high ground, everyone know that thepiratebay was knowingly issuing illegal files, and profiting of the ad sales that traffic allowed. From the latest films to the top antivirus software, they were in the business of facilitating piracy.